PART B NEGOTIATING EHR CONTRACTS: KEY TERMS AND CONSIDERATIONS FOR PROVIDERS 1. INTRODUCTION TO EHR CONTRACTING An EHR contract outlines the respective rights and responsibilities of a health care provider organization and its EHR vendor, and creates a binding obligation on both parties with respect to the acquisition, implementation, and use of an EHR, as well as related transition issues. A carefully negotiated EHR contract can minimize the potential for future problems and create a more beneficial and balanced relationship between the EHR vendor and the health care provider organization. Increasingly, customers are expecting EHR vendors to fairly allocate risks and associated liabilities between the parties to reflect the shared responsibilities of an EHR implementation. As a customer, you should expect your EHR vendor either to offer, or be willing to negotiate, terms that are consistent with the best practices identified in this guide. To the extent that you negotiate a well-drafted, comprehensive contract with the EHR vendor, then it will serve as a roadmap for the parties dealings during the implementation of the EHR as well as during its ongoing maintenance and use. 1.1 Standard Form EHR Contracts Some EHR vendors use standard form contracts, where the terms and conditions of the proposed EHR contract are prepared by the vendor, and the provider organization has limited ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position. Your ability to negotiate changes to an EHR vendors standard form contract may depend, in part, on the following factors: (i) the importance of your business to the EHR vendor; (ii) the size of your practice or provider organization; (iii) the amount being spent on the acquisition; and (iv) the market share of the EHR vendor. It is preferable to ask an EHR vendor for information regarding its contracting practices early in your EHR acquisition process and before you have identified your preferred EHR vendor. It is a matter for you to decide whether or not you choose to work with an EHR vendor that offers only a non-negotiable contract. If you decide to accept standard form EHR contract terms without modification, you should make sure you understand the nature of the rights and obligations to which you are agreeing. Additionally, it is important that you consider what might be missing from the standard form contract (using this guide as a starting point) and assess the risk to your organization caused by an EHR contract drafted from the vendors perspective. 1.2 Negotiation Strategy All EHR contract negotiations will require each party to make certain decisions based upon its particular needs and goals; terms that are perceived as critical by one health care provider organization may be less important to another. Prior to commencing negotiations for an EHR, you should understand and prioritize terms that are important to achieving your particular needs and goals with respect to the acquisition and implementation of an EHR. You should also assess your negotiating leverage and the extent to which you are prepared to compromise in some areas to achieve a more favorable outcome in others. If you work with an EHR vendor that will negotiate contract terms, your negotiating leverage is likely to vary depending upon a number of factorsyour circumstances and available resources, the EHR vendors standard contract terms, how much you know about alternative contract terms, your skill at negotiating, and state law, among other considerations. Prior to negotiating the terms of the EHR contract, you and your acquisition team should prepare an issues list or negotiation matrix that documents your initial and fallback positions on each key issue arising in the contract. To increase your negotiating leverage, you may wish to consider not naming a specific EHR vendor as the vendor of choice and conducting parallel negotiations with more than one EHR vendor consistent with your available resources and timeline. You also may wish to have a discussion with senior management regarding your organizations willingness to walk away from an EHR contract negotiation if the vendor EHR Contracts Untangled: Selecting Wisely, Negotiating Terms, and Understanding the Fine Print 9 is not responsive to your concerns or is unwilling to accept revised terms that are important to you. Consulting with an experienced attorney for legal advice is recommended. 1.3 Example Contract Terms Example contract terms have been included in this guide to illustrate how you might address certain issues in your EHR contract. The example contract terms will need to be tailored to meet your specific circumstances and the EHR model you have selected. For example, the example contract terms employ capitalized words and phrases, some of which are not defined in this guide. If you negotiate contract terms modeled on the examples in this guide, you will need to carefully review how these capitalized words and phrases are defined in your EHR contract to ensure that they are consistent with the intent of those terms. Some of the example contract terms included in this guide address privacy and security issues that overlap with the issues addressed in a typical Business Associate Agreement (BAA). However, you should be aware that there are additional privacy and security rights and obligations that must be addressed under your BAA that are not addressed in the example contract terms. It is recommended that you seek legal advice on whether an example contract term is appropriate for your specific circumstances. 1.4 Technical Advice In addition to legal advice, you may benefit from consulting with a technical advisor regarding your EHR acquisition to: (i) minimize problems during the initial and post go-live periods; (ii) anticipate your future needs with respect to your EHR, including customizations and other technology provided by independent vendors that may complement the core system; and (iii) design options to ensure that patient information can be transitioned if the technology becomes outdated or if it becomes necessary to change EHR vendors. This document should not be construed as legal advice, and does not address all possible legal and other issues that may arise with the acquisition of an EHR; each health care provider organization is unique with respect to its information technology infrastructure and the EHR license and implementation presents its own particular circumstances. This guide contains examples of certain contract terms favorable to health care provider organizations as well as a description of certain issues to consider in drafting key contract provisions. The examples and issues for consideration will need to be tailored to meet your specific circumstances.

You have been asked to review the contracts from vendors as part of the eMAR implementation project. Read Part B Negotiating ehr contracts: key terms and considerations for providers, Section 1. Introduction to EHR contracting and answer the following questions.

12. The contract you are reviewing has language that identifies it is a standard form contract. What does this term mean?

13. According to the article, why might it be advantageous for the General Hospital to not identify any one eMAR vendor as the vendor of choice?